Mealey's Elder Law

  • October 15, 2021

    Kentucky Federal Judge Grants Request To Compel Arbitration In Elder Care Suit

    LEXINGTON, Ky. — A federal judge in Kentucky on Sept. 30 granted a personal care home’s motion to compel arbitration of negligence and other claims in an underlying state court case and denied a guardian’s request to dismiss the facility’s suit for lack of subject matter jurisdiction or to abstain in favor of the state court case.  The judge found that the individual defendants in the state court action were not indispensable parties to the federal action and that the guardian’s durable power of attorney authorized her to enter into an arbitration agreement.

  • October 15, 2021

    10th Circuit Upholds Ruling For USPS On Employee’s Bias, Constitutional Claims

    DENVER — A former employee of the U.S. Postal Service (USPS) who brought several bias, retaliation and constitutional claims after she was terminated during her 90-day probation failed to show that a signed document issued several days after her firing that eliminated the probation period for employees like her impacted her firing, a 10th Circuit U.S. Court of Appeals panel ruled Oct. 6.

  • October 14, 2021

    Son Tells 5th Circuit PREP Act Doesn’t Apply To COVID-19 Negligence Suit

    NEW ORLEANS — Calling his suit “nothing more than a standard health care liability claim between non-diverse parties,” the son of a nursing home resident who died after contracting  COVID-19 at the facility on Oct. 7 urged the Fifth Circuit U.S. Court of Appeals to reject its owners’ and operators’ argument that his negligence suit is preempted by the Public Readiness and Emergency Preparedness (PREP) Act and affirm a lower court order remanding it to Texas state court.

  • October 14, 2021

    Tennessee Appeals Court Vacates Dismissal Of Will Contest; No Estoppel Proven

    KNOXVILLE, Tenn. — A Tennessee appellate court on Sept. 29 vacated a portion of a trial court’s order estopping a will contest, concluding that the elements of estoppel had not been proven even though the contestants received property under the will.

  • October 14, 2021

    Panel Affirms Will Contest Ruling And Says No Proof Of Absence Of Undue Influence

    PHILADELPHIA — A Pennsylvania Superior Court panel on Sept. 24 affirmed a lower court’s ruling that struck a 2014 will as invalid and concluded that the appellants did not meet their burden of proving the absence of undue influence by clear and convincing evidence.

  • October 13, 2021

    High Court Hears Arguments On Social Security Windfall Elimination Provision

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 13 heard oral arguments on whether the uniformed services exception to the Social Security Act’s windfall elimination provision (WEP) applies to pension payments based on work performed as a dual-status technician.

  • October 12, 2021

    Federal Judge Rejects Patients’ ADA Claims Regarding Aid-In-Dying Law

    SAN FRANCISCO — A California federal judge on Sept. 20 denied a motion for a preliminary injunction filed by two patients battling neurodegenerative disorders who challenged California’s End of Life Option Act’s provision requiring patients to administer the aid-in-dying medication themselves as a discriminatory provision against those who are physically disabled under the Americans with Disabilities Act.

  • October 12, 2021

    Kentucky Panel Affirms Lower Court’s Retention Of Power Of Attorney Challenge

    FRANKFORT, Ky. — A Kentucky appellate court on Sept. 17 affirmed a lower court’s grant of summary judgment in a brothers’ dispute related to their mother’s power of attorney (POA) and rejected the appellant’s argument that a circuit court erred in ruling that a district court properly retained jurisdiction of the claim that their mother lacked capacity to enter the POA agreement.

  • October 12, 2021

    Ark. Court: Agent Had No Authority To Sign Nursing Home Arbitration Agreement

    LITTLE ROCK, Ark. — An Arkansas appellate court on Sept. 22 held that a nursing home resident’s daughter had no authority to sign an arbitration agreement as a power of attorney (POA) on her father’s behalf because the POA document specified grants of other authorities with no mention of arbitration, affirming a trial court’s denial of a motion to compel arbitration.

  • October 05, 2021

    Alabama Supreme Court: Trial Court Properly Declared Heir Based On DNA Test

    MONTGOMERY Ala. — The Alabama Supreme Court on Sept. 17 affirmed a probate court’s judgment declaring a woman heir of an estate for purposes of intestate succession based on DNA, rejecting challenges declaring that the DNA test results could have been switched because they were obtained by interested parties.

  • October 09, 2021

    Indiana Appeals Court: Deed Invalid Due To Woman Unduly Influencing Grandfather

    INDIANAPOLIS — An Indiana appellate court on Sept. 17 affirmed a trial court’s ruling that a transfer of property was invalid, agreeing with the lower court that a woman obtained the deed to the property as a result of exercising undue influence toward her sick grandfather.

  • October 09, 2021

    Georgia Supreme Court: Guardian Had Arbitration Authority Under State Code

    ATLANTA — The Georgia Supreme Court ruled Sept. 21 that the state’s Guardianship Code granted a guardian authority to enter into a binding predispute arbitration agreement for her nephew at a nursing facility, reversing an appellate court ruling and remanding the case for further consideration.

  • October 09, 2021

    10th Circuit Reverses, Remands Ruling On Assets For Medicaid Eligibility

    DENVER — Finding that material disputes of fact exist regarding whether a promissory note should be counted among a woman’s resources for determining her eligibility for long-term care benefits under Medicaid, the 10th Circuit U.S. Court of Appeals on Sept. 28 reversed a lower court’s grant of summary judgment to two Oklahoma agencies and remanded for further proceedings.

  • October 08, 2021

    Split Mississippi High Court Affirms Arbitration Order That Relied On Facility Doctor

    JACKSON, Miss. — A sharply divided en banc Mississippi Court of Appeals on Oct. 5 in a plurality opinion affirmed a circuit court’s order compelling arbitration of negligence claims against a nursing home, agreeing with the lower court that the facility’s medical director was the resident’s “primary physician” when he determined that the resident lacked mental capacity, rendering his son qualified to act as his surrogate and bind the resident to the arbitration provision in the facility’s admission agreement.

  • October 08, 2021

    Divided 6th Circuit Affirms: Long-Term Care Policies Remain Continuously In Force

    CINCINNATI — Because two long-term-care insurance policies “reveal an intent to remain in force continuously,” the policies never incorporated changes in Florida and Ohio law prohibiting mandatory hospitalization provisions in such policies, a divided Sixth Circuit U.S. Court of Appeals panel ruled Oct. 4, affirming a lower court’s dismissal of an insured’s claims against the insurer and grant of summary judgment in the insurer’s favor on the other insured’s claims.

  • October 07, 2021

    9th Circuit Consolidates 3 COVID-19 Nursing Home Appeals For Oral Argument

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals in an Oct. 4 order consolidated for oral argument purposes only three appeals of federal judges’ orders remanding COVID-19-related wrongful death and negligence actions to California state court after finding no federal jurisdiction under the Public Readiness and Emergency Preparedness Act (PREP Act), federal officer jurisdiction or “imbedded question of federal law.”

  • October 06, 2021

    Provider, Insurer Grapple Over Supreme Court Review In Medicare-Dialysis Case

    SAN FRANCISCO — A provider tells the U.S. Supreme Court in a Sept. 21 brief that it should ignore manufactured urgency over an alleged spilt between two circuit courts involving Medicare and insurer discrimination against end-stage renal disease (ESRD) sufferers, but in an Oct. 4 reply, a health plan tells the court that the circuit split is obvious and that review is warranted.

  • October 05, 2021

    8th Circuit Affirms Judgment For CMS On Long-Term Care Arbitration Agreement Rule

    ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on Oct. 1 found that a Centers for Medicare and Medicaid Services (CMS) rule that places conditions on the use of arbitration agreements for long-term care (LTC) facilities that participate in the Medicare and Medicaid programs does not violate the Federal Arbitration Act (FAA), Administrative Procedure Act (APA) or Regulatory Flexibility Act (RFA), affirming summary judgment in favor of the government.

  • October 05, 2021

    State Law Requirement Met In Medical Malpractice Suit Filed Against Nursing Facility

    HARTFORD, Conn.— A Connecticut judge on Sept. 2 denied a skilled nursing facility’s motion to dismiss a medical malpractice suit because the plaintiff provided an opinion of medical negligence by a similar health care provider as required by Connecticut statute.

  • October 05, 2021

    Indiana Panel Reverses Lower Court’s Decision To Increase Grandparents’ Visitation

    INDIANAPOLIS— An Indiana appellate court on Sept. 28 reversed and remanded a trial court’s decision to modify a grandparents’ visitation order, finding that the court abused its discretion when increasing the grandparents’ visitation with the child.